Citation Nr: 21024785 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 11-33 020 DATE: April 26, 2021 REMANDED Entitlement to a disability rating in excess of 40 percent disabling for residuals of back strain-lumboparavertebral myositis prior to August 20, 2015 and from November 1, 2015 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1984 to September 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision. During the pendency of the appeal, a June 2016 rating decision awarded a temporary 100 percent rating effective from August 20, 2015 to October 31, 2015. The 40 percent rating for the Veteran’s lumbar spine disability resumed thereafter. The Veteran continued to appeal his lumbar spine disability rating, excluding the period of temporary total evaluation. See AB v. Brown, 6 Vet. App. 36, 38 (1993). In decisions dated in March 2017 and May 2018, the Board remanded the above issues to the agency of original jurisdiction (AOJ) for additional development. The case has since been returned to the Board. 1. Entitlement to a disability rating in excess of 40 percent disabling for residuals of back strain-lumboparavertebral myositis prior to August 20, 2015 and from November 1, 2015 is remanded. In the May 2018 Board remand, the Board noted that although a May 2017 VA examiner opined that it was less likely than not that the Veteran's left lower extremity radiculopathy was related to his lumbar spine disability, the examiner provided no rationale as the examiner only noted that it was the result of the Veteran's non-service-connected lumbar spondylosis and degenerative disc disease first diagnosed in 2012. The Board directed the AOJ to obtain a VA medical opinion that addressed in part whether it is at least as likely as not that the Veteran's lower extremity radiculopathy is related to his service-connected lumbar strain disability. If an examination was deemed necessary by the examiner, one was to be provided. The Veteran subsequently underwent an April 2019 VA examination to evaluate his lumbar spine disability. In the examination report, the examiner noted diagnoses of intervertebral disc syndrome, spinal stenosis, residuals of back strain-lumboparavertebral myositis, degenerative disc disease, and right lower extremity radiculopathy. In response to the above requested opinion, the examiner stated that the claimed condition is less likely than not proximately due to or the result of the Veteran’s lumbar strain disability. The examiner noted that the Veteran developed a lumbar spine sprain in 1984 that was associated with some discomfort in the right leg. Subsequent to the original injury, he developed degenerative disc disease in 2012 which was associated with a lower extremity radiculopathy. The interval between the original injury and the development of the degenerative disc disease was 27 years. It was likely that the degenerative disc disease and the subsequent conditions were related to subsequent wear and tear on the spine and age-related changes that were not related to the original lumbar spine sprain. However, as left lumbar radiculopathy was not included in the diagnosis section of the April 2019 VA examination report, it is unclear whether the examiner considered this diagnosis that was previously noted in the May 2017 VA examination report for the Veteran's lumbar spine disability. As such, the Board finds that a remand is necessary to obtain an additional medical opinion that clearly addresses all potential neurological manifestations of the Veteran’s lumbar spine disability. The Board also notes that following the April 2019 VA examination, a January 2020 VA treatment record indicated that the Veteran’s back pain had worsened, noting that the Veteran had “postlaminectomy worsen back pain.” Notably, the April 2019 VA examiner previously stated that the Veteran's current back pain was likely a combination of his original injury as well as residuals of surgery. As this record raises the possibility that the severity of the Veteran’s lumbar spine disability has increased, the Board finds that a remand is warranted to obtain a contemporaneous VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board additionally notes that in the March 2021 Informal Hearing Presentation, the Veteran's representative indicated that the examiner who conducted the April 2019 VA examination was not competent to make findings regarding the Veteran's lumbar spine disability. The examination report noted that the examiner was a medical doctor with a specialty in surgery. The representative observed that the examination report reflected that the examiner's specialty was in surgery, and it did not appear to be related to orthopedics. The representative added that an orthopedic specialist needed to examine the Veteran. The Board first notes that the question of "whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries." See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019) (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional's qualifications in every case as a precondition for the Board's reliance upon that person's opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, "[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion." Id. at 1381. The representative did not request information about the examiner's qualifications. The Board also notes that rather than challenging the competency of the specific VA examiner in this case, the representative's objection appears to be based solely on the examiner's noted specialty of surgery in the examination report. To the extent that the representative has challenged the ability of any medical doctor with a specialty in surgery to provide findings regarding the current manifestations of the Veteran's lumbar spine disability, there is no indication that any greater level of specialized training is required for this type of examination. As a general matter, there is no requirement that a medical examination even be conducted by a physician. See Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996)). In addition, there is no evidence of record to support the representative's assertion that a medical doctor with a specialty in surgery is not competent to provide medical findings addressing the Veteran's lumbar spine disability. The Board consequently finds that the April 2019 examiner was competent to conduct the VA examination relevant to the Veteran's claim. As a result, the Board does not find that it is necessary to request that the examination provided on remand be conducted by an orthopedic specialist. 2. Entitlement to a TDIU is remanded. As resolution of the Veteran's increased rating claim for his lumbar spine disability may impact his claim for a TDIU, the Board finds that the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, consideration of entitlement to a TDIU must be deferred pending adjudication of the Veteran's claim for an increased evaluation. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide or identify medical records that are outstanding and relevant to his increased rating claim for his lumbar spine disability or claim for a TDIU. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include treatment records dated since August 2020. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of back strain-lumboparavertebral myositis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also indicate whether the Veteran has any neurological disability as a result of his service-connected residuals of back strain-lumboparavertebral myositis. For the Veteran’s previously diagnosed left lumbar radiculopathy and right lower extremity radiculopathy, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability), that the disorders were caused or aggravated by the Veteran’s service-connected residuals of back strain-lumboparavertebral myositis. 3. Thereafter, readjudicate the issues on appeal, to include the claim for entitlement to a TDIU. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.